The Rome Statute came into effect on 1 July 2002, creating the world's
first permanent International Criminal Court (ICC). After the sixtieth
ratification, the Statute entered into force, in accordance with Art. 126
(1). The Rome Statute, which was passed by 120 votes to seven against
(with 21 abstentions), provides for jurisdiction over war crimes, crimes
against humanity and genocide.

The Court does not have jurisdiction over international terrorism per se,
but many scholars assert that some terrorist acts could be prosecuted as
crimes against humanity. These dreadful terrorist attacks against the
United States on September 11, 2001, have made it clearer than ever that
the international community needs to cooperate and take actions against
terrorism on an international level. Terrorism is not merely a domestic
problem. In the future we will not be able to rely on domestic legislation
only. It will be necessary to determine international concepts and
approaches which tackle crimes of terrorism on an international level as
well.

The purpose of this paper is to explore what role the International
Criminal Court (hereinafter: ICC) might play in combating terrorism in
terms of international law enforcement.

Jurisdiction of ICC

The jurisdiction of the court needs to be understood in three contexts:
# Jurisdiction rationae materiae, (which answers the question of which
crimes can be tried before the ICC?)
# Jurisdiction rationae personae, (who can be judged?)
# And jurisdiction rationae temporis (when might the crimes have been
committed?)
With respect to Jurisdiction rationae material, Art. 1 of the Rome Statute
states that [the Court] shall have the power to exercise its jurisdiction
over persons for the most serious crimes of international concern. These
crimes comprise genocide (Art. 6), crimes against humanity (Art. 7), and
war crimes (Art. 8). After extensive debates, the negotiators agreed to
also include the crime of aggression. However, the ICC will not exercise
jurisdiction over the crime of aggression unless agreement is reached
regarding how to define the crime and regarding the conditions for the
court's exercise of jurisdiction over it.

With respect to jurisdiction rationae personae, the Rome Statute provides
that the ICC only has jurisdiction over natural persons (Article 25 of the
Statute) at least eighteen years of age at the time the crime was
allegedly committed(Article 26 of the Statute). Art.12 of the Statute
contains the principle of territorial jurisdiction. The ICC may exercise
jurisdiction over crimes committed in the territory of a state party
irrespective of the offender's nationality, Art. 12(2)(a). The offender
will incur criminal responsibility even if the state of which he or she is
a national is not a party to the Rome Statute. On the basis of nationality
principle, the ICC exercises jurisdiction over individuals, who are
nationals of state parties or of states which have accepted ICC-jurisdiction.
Offenders can be tried whether or not a crime has been committed in the
territory of a state party. However, since non-state parties are not bound
by the Statute, they need not cooperate with the authorities of the ICC in
case a national of a state party committed a crime in their territory.

Finally insofar as the jurisdiction rationae temporis is concerned the ICC
has jurisdiction only for crimes committed after the entry into force of
the Rome Statute. Furthermore, for the States which become party
subsequently, the competence of the ICC only holds for the crimes
committed after the statute comes into force for that State. But it would
be suffice that either the crime was committed or that the nationality of
the author of the crime be party to the Statute for the competence of the
ICC to be acknowledged.

Terrorism as International Crime

Like no other event in recent history, the attacks against the United
States on September 11, 2001 concentrated the world's attention on the
problems of terrorism. Among the many problems terrorism poses is a
familiar crux of international law: the failure of attempts by the
community of nations to find an acceptable legal definition of terrorism.
The principle reason for this aporia is that the international community
finds it difficult to distinguish between terrorism, national liberation
movements and other movement that has or continue to use force to defend
their right of self-determination. For this reason, the international law
concerning terrorism has developed haphazardly and now consists of an
unsystematic hodge-podge of treaties concerning specific modes of
terrorism. Individual states have chosen which among these treaties they
will ratify and incorporate into their domestic legal systems.
Accordingly, prosecutions of acts of terrorism falling within the various
treaties tend only to occur in domestic legal fora.

In S.C. Resolution 1373, adopted on September 28, 2001, the Security
Council stated that the acts committed on September 11, 2001, like any
act of international terrorism, constitute a threat to the peace and
security of the international community. The dreadful terrorist attacks
against the United States on September 11, 2001, have made it clearer than
ever that the international community needs to cooperate and take actions
against terrorism on an international level. In this sense, the role that
can be played by the International Criminal Court is extremely important,
owing to its nature as an international judicial body with universal
jurisdiction and a specialized area of action (international crimes).

International Terrorism and the Jurisdiction of ICC

Individual terrorists typically act independently of a state. For this,
and other reasons, the prosecution of terrorists by the ICC raises some
complex question of the interpretation as the crimes defined by the Rome
Statute do not easily fit' the activities of many terrorist groups.
a) Terrorism as War Crime-
The Rome Statute of the International Criminal Court distinguishes between
four types of war crimes, namely:
(a) Grave breaches of the Geneva Conventions of 12 August 1949;
(b) other serious violations of the laws and customs applicable in
international armed conflict, within the established framework of
international law;
(c) in the case of an armed conflict not of an international character,
serious violations of Article 3, common to the four Geneva Conventions of
12 August 1949;
(d) other serious violations of the laws and customs applicable in armed
conflicts not of an international character, within the established
framework of international law. (Article 8)

Terrorist acts will, however, amount to war crimes subject to prosecution
before the Court only when they are committed as part of a plan or policy
or a part of a large scale commission of such crime.

A significant impediment to prosecuting terrorists for war crimes before
the ICC is the Elements of Crime that provides that war crimes are to be
interpreted within the established framework of the international law of
armed conflict.

Under Article 8(a)(i), for example, the war crime of
willful killing requires that:
• The Perpetrator killed one or more persons,
• Such person or persons were protected under one or more of the Geneva
Convention of 1949.
• The Perpetrator was aware of the factual circumstances that established
that protected status.
• The conduct took place in the context of and was associated with an
international armed conflict.
• The perpetrator was aware of factual circumstances that established the
existence of an armed conflict.

These elements do not fit easily within terrorist acts. However, taking
Al-Qaeda as an example, each of the elements might be satisfied on the
facts; there is arguably an armed conflict between Al-Qaeda groups with
a plan to kill Western business men and women and tourists in locations
throughout the world; if an armed conflict is found to exist, the other
elements are more readily demonstrated. Similarly, the terrorist acts of
certain Palestinian and Israeli groups might be considered as part of an
international armed conflict.

Terrorism as Genocide

Article 2, of the Genocide Convention defines genocide as:
[...] any of the following acts committed with intent to destroy, in whole
or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to
bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.

For a crime of genocide to have been committed it is thus necessary:
(1) that one of the acts listed have been committed (i.e., killing members
of a group, etc.);
(2) that the particular act has been committed against a national,
ethnical, racial or religious group; and
(3) that the crime has been committed with the special intent to destroy,
in whole or in part the group, as such, of these elements, the third of
"genocidal intent" is what really distinguishes genocide from other
crimes.

Also the second element - the special identity of the victim
requirement - is special for genocide. From a terrorism perspective, it is
difficult to regard genocide as a crime that would be very useful for
prosecutions. In genocide, the perpetrator aims at destroying a community
as such. Normally, it would be difficult for non- State actors to perform
the underlying offences on a scale that implies genocidal intent.

However depending upon the evidence, terrorist attacks could be acts that
fall within the definition of genocide. The attacks on Palestinian homes,
Jewish settlements in occupied territories, us overseas embassies, major
US cities, on international tourist destinations or civilian facilities
provide examples of acts that could satisfy the definition. Conviction for
such acts will, however, depend on whether the evidence of an intent to
destroy certain groups in whole or in part is sufficient to meet the
elements of the definition of genocide.

c) Terrorism as Crime against Humanity

The concept crimes against humanity' evolved under the rules of customary
international law and was proclaimed for the first time in the Charter of
the International Military Tribunal of Nuremberg. In the International
Criminal Court Statute of 1998 - that is the latest and most authoritative
international instrument - crimes against humanity are defined as "any of
the following acts when committed as part of a widespread or systematic
attack directed against any civilian population, with knowledge of the
attack: (a) murder; (b) extermination; (c) enslavement; (d) deportation or
forcible transfer of population; (e) imprisonment or other severe
deprivation of physical liberty in violation of fundamental rules of
international law; (f) torture; (g) rape, sexual slavery, enforced
prostitution, forced pregnancy, enforced sterilization, or any other form
of sexual violence of comparable gravity; (h) persecution against any
identifiable group or collectivity on political, racial, national, ethnic,
cultural, religious, gender [...], or other grounds that are universally
recognized as impermissible under international law [...]; (i) enforced
disappearance of persons; (j) the crime of apartheid; (k) other inhumane
acts of a similar character intentionally causing great suffering, or
serious injury to body or to mental or physical health. [Article 7(1)].

In short, the Rome Statute of the International Criminal Court (and the
draft elements of crimes adopted) and the case law of the Yugoslavia and
Rwanda Tribunals suggest that the crimes against humanity have three
essential elements:
(1) The perpetrator has taken part in the commission of an inhumane act
causing great suffering, or serious injury to the body or mental or
physical health, that is, the perpetrator has committed one of the
enumerated acts/underlying offences;
(2) The underlying offence was committed as part of a widespread or
systematic attack directed against a civilian population ("the contextual
element"); and
(3) The perpetrator knew that the conduct was part of or intended the
conduct to be part of a widespread or systematic attack against a civilian
population ("mens rea relating to the contextual element")

In the International Criminal Court Statute an "attack directed against
any civilian population" is defined as "course of conduct involving the
multiple commission of acts referred to in [Article7] [...] against any
civilian population, pursuant to or in furtherance of a State or
organizational policy to commit such attack".

A crime against humanity does, however, additionally envisage that a
terrorist act amounts to such a crime if it is furtherance of an
organizational policy that is not necessarily that of sovereign State.
It could be argued that the acts of terrorist group further the
organizational policy of their own or another non-state group. If so, the
Court could determine that it has jurisdiction over such acts for the
purpose of a prosecution for a crime against humanity.

Conclusion
A brief analysis of terrorist acts with the jurisdictional power of the
ICC indicates the terrorism might be prosecuted as a crime against
Humanity, war crime or possibly genocide. The emphasis of the Rome Statute
lies with individual responsibility so there is no need to demonstrate
that a State has been the perpetrator. Now that the category of offenders
was extended to include terrorist organizations, the September 11 attacks
could be theoretically viewed as crimes against humanity. Of the
international core crimes, the crime against humanity is the one best
suited to tackle terrorist crimes with. The central requirement of crimes
against humanity is that the illegal act must be committed as part of a
widespread or systematic attack directed against a civilian population.
The state, or in this case the non-state actor, must not necessarily adopt
a policy as the formal policy.

However, in my opinion, it would be beneficial to amend the ICC Statute
with express provisions concerning terrorism. One has to keep in mind that
terrorism is a separate category and as such deserves separate
contemplation and prosecution. As already laid out earlier, not all
terrorist acts meet the high threshold of crimes against humanity.
Consequently, certain terrorists could escape ICC jurisdiction even though
their act was vile and a serious crime of international concern.
The ICC is currently the only capable international institution that could
fill the current gap in the law and serve as an ideal tool in the battle
against terrorism by upholding justice. The important link between peace
and prosecution by an impartial court should not be underestimated. With
sufficient support of the international community, the ICC could be a
powerful mechanism, and it could be an especially credible one by virtue
of its transparency and commitment to the legal ideals respected by most
domestic legal systems. It would be a serious setback if the Court were
allowed to emerge stillborn.

Bibliography
Books referred:
1. William A. Schabas, An Introduction to International Criminal Court
(Cambridge University Press, Published 2007).
2. Andrea Bianchi, Yasmin Naqvi, Enforcing International Law Norms Against
Terrorism (Hart Publishing, Published 2004).
Articles referred:
1. Gillian Triggs, Challenges for the International Criminal Court:
Terrorism, Immunity Agreement and National Trials', Ustinia Dolgopal and
Judith Gardam (eds.), International Humanitarian Law Series: The Challenge
of Conflict, Martinus Nijhiff Publishers, 2006).pp. 315-330.
2. Olympia Bekou and Robert Cryer, The International Criminal Court and
Universal Jurisdiction: A Close Encounter?', International and Comparitive
Law Quarterly,
3. Mikaela Heikkila, Holding Non-State Actors directly responsible for
acts of International Terror Violence', Institute for Human Rights, Abo
Akedamy University, 2002, available at http://www.web.abo.fi/instut/imr/norta/mikaela.pdf
4. Mira Banchik, International Criminal Court and Terrorism', June 2003.
available at http://www.tamilnation.org/terrorism/international_law/0306iccandterrorism.htm
5. Richard J. Goldstone & Janine Simpson, Evaluating the Role of
International Criminal Court as a Legal Response to Terrorism', Harvard
Law Journals, available at http://www.law.harvard.edu/students/org/hrj/iss16/goldstone.shtml
6. Salzburg Retreat, The Future of the ICC', May 2006, Salzburg Law
School on Int. Criminal law, Humanitarian law and HR Law (eds.), available
at http://www.sbg.ac.at/salzburglawschool/Retreat.pdf
7. AMICC: Terrorism and ICC' available at http://www.amicc.org/docs/terrorism.pdf
8. Terrorism as an international Crime' available at
http://www.counter_terrorism_law.org/internationallaw.pdf

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